The rules regarding the examination of witnesses at deposition are vastly different from the rules at trial, and while the COVID-19 epidemic is changing the way we do depositions from in person to video, the rules of how deponents are examined have not changed. When an objection is made at trial, the court will direct the witness not to answer the question until the objection is ruled upon. If the objection is found to be valid, the witness is directed not to answer the question. Different rules apply at deposition where witnesses generally must answer questions whether objections are made or not. The practice at deposition is that lawyers need not interpose objections to questions, except as to the form of the question, because, except in limited circumstances, the person being deposed must answer the question anyway, whether an objection is made or not. Thus, at deposition where a witness is being examined by one lawyer, the opposing lawyer may object on the basis that the question seeks hearsay testimony, or that the matter is irrelevant, or that the question calls for a conclusion, or calls for an opinion, or seeks personal information of the witness, or is immaterial, etc. Despite those objections, the witness must answer and will be told by the lawyer making the objection: “You may answer.” Thus, at deposition a witness may be required to answer some questions that he or she would not be compelled to answer at trial.
There are certain objections that must be raised at deposition, or they will be lost, such as when the objection asserts that a question is leading or is phrased in a way that could be corrected by the lawyer asking the question. If the opposing lawyer has an objection based upon the “form” of the question, then that objection as to form must be raised at deposition so that the lawyer examining the witness is given the opportunity to rephrase the question and ask it properly. But even if an objection is made, the deponent must answer. With limited exceptions, all other objections are preserved and may be raised at trial.
In a Law and Order episode, the prosecutor, Jack McCoy, was talking to his associate, Claire Kincaid, about her upcoming deposition and explaining that she might be asked certain questions likely to elicit harmful testimony by her. The response by Claire Kincaid was: “Well, you’ll just object.” McCoy’s reply to her was: “But Claire, you know you have to answer the question anyway.” That, in fact, is the general rule.
There are a limited number of objections at deposition which, when made, can be followed by an instruction by the client’s lawyer directing the client not to answer. Thus, objections based on privilege, such as the attorney/client privilege, the Fifth Amendment privilege or the doctor/patient privilege, may be raised at deposition and a lawyer may instruct the client or possibly warn a witness not to answer on that basis. There are, generally speaking, only three bases on which a lawyer may instruct a witness, usually his or her client, not to answer a question at deposition. Those three bases are:
- In support of a court order, such as an order to protect trade secrets or to limit inquiry into certain past conduct or other limitations previously imposed by the court.
- An objection made in support of a motion. Such objections are usually made to a certain line of questioning on the basis that opposing counsel is badgering the witness or humiliating the witness or improperly examining the witness to such a degree that the lawyer instructs the witness, or his or her client, not to answer and interrupts the deposition, or at least that line of questioning, and thereafter files a motion with the court to preclude the continuation of the deposition, or that line of questioning, because the questioning is being pursued in an improper fashion or for an improper reason. Such motions are seldom filed and opposing lawyers, after some saber rattling, normally come to an agreement limiting the questioning.
Thus, the rule in general is that witnesses at deposition must answer all questions they are asked, even if the opposing lawyer objects. The objection is simply noted on the record and the client or witness is then instructed to answer the question. This means that, especially in divorce cases, some very personal questions may be asked of the parties or of witnesses. Thus, clients, and to some extent witnesses, should be prepared to have to respond to some intrusive questioning at deposition. Therefore, a party to litigation should be prepared to undergo some unpleasant questioning, especially in divorce litigation, where just about anything may be the subject of inquiry.